A month after the Yogi Adityanath-led Uttar Pradesh (UP) government promulgated the ‘love jihad’ ordinance, 104 former IAS officers urged him to withdraw the controversial anti-conversion provision.
In a strong letter to the UP CM, former civil servants – including former National Security Advisor Shivshankar Menon, former Foreign Secretary Nirupama Rao, and former Adviser to the Prime Minister T.K.A. Nair – have reportedly demanded that the “illegal ordinance be withdrawn forthwith”. They added that UP had become the “epicentre of the politics of hate, division and bigotry”. The ex-bureaucrats also said that all politicians of the state, including the Chief Minister, need to “re-educate” themselves about the provisions of the Constitution, which he and other lawmakers “have sworn to uphold”.
The letter comes at a crucial juncture as the state has witnessed a spate of attacks on inter-religious couples while other states such as Madhya Pradesh and Karnataka are in different stages of announcing similar ordinances.
Within 30 days of its promulgation, the UP Police has registered 14 cases under this law, which came into force on November 28. A total of 51 arrests have been made, out of which 49 accused are in jail.
The IAS officers stated that “UP, once known as the cradle of the Ganga-Jamuna civilisation, has become the epicentre of the politics of hate, division and bigotry, and institutions of governance are now steeped in communal poison.”
“... a series of heinous atrocities committed by your administration against young Indians across Uttar Pradesh... Indians who are simply seeking to live their lives as free citizens of a free country,” their letter added.
Ordinance Unlikely to Stand Judicial Scrutiny
The Adityanath government’s ordinance against forcible or fraudulent religious conversions, which provides for imprisonment of up to ten years and a fine of up to Rs 50,000 under different categories, has been called an openly anti-Muslim legislation.
The ordinance is being challenged legally on multiple fronts; the Citizens for Justice and Peace (CJP) has filed a writ petition in the Supreme Court challenging the constitutional validity of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 and the Uttarakhand Freedom of Religion Act, 2018.
Amid a legal battle, High Courts have emerged as a ray of hope, having passed progressive judgements and offering protection to interfaith couples.
A survey of the orders passed by the Allahabad High Court in the month of November alone showed that it had granted relief to 117 couples who had gone for inter-faith marriages. The High Court reportedly asked the Senior Superintendent of Police of the concerned district to act upon complaints by the couples, who were facing threats to life and liberty from their relatives on account of marrying outside their caste/religion.
On December 28, The Allahabad High Court ruled in favour of an interfaith couple, underlining that the woman, an adult who “wants to live with her husband”, had the “right to live life on her terms (and) is free to move as per her choice without any restriction or hindrance being created by (a) third party”.
The court also quashed an FIR registered against her husband in September in Uttar Pradesh's Etah district. It directed the police to provide security for the couple till they returned home. The FIR had been filed after the father of the woman said his daughter has been kidnapped and forced to get married.
Earlier this month, a court in Uttar Pradesh’s Moradabad district ordered the release of two men arrested under the new anti-conversion law due to a lack of evidence against them. Rashid Ali and his brother were reportedly arrested on December 4 after they had gone to the registrar’s office to record the former’s marriage to a Hindu woman. Pinki, his pregnant wife, was sent to a shelter home in Moradabad district. An ultrasound examination confirmed that she had a miscarriage.
At a time when debate is rife over Uttar Pradesh’s new ‘love jihad’ ordinance, the Karnataka high court has said that the right of any adult to marry a person of their choice is a fundamental right guaranteed by the Indian constitution. ‘We do not see them as Hindu & Muslim’-- The court noted that Alia was 21-year-old and said the fact that the petition is filed and supported her affidavit “goes to show that she is voluntarily living with Salamat Ansari as a married couple”.“We do not see Priyanka Kharwar and Salamat as Hindu and Muslim, rather as two grown up individuals who out of their own free will and choice are living together peacefully and happily over a year,” it observed.
The court was hearing a petition filed by a couple — Salamat Ansari and Priyanka Kharwar (now Alia) — who tied the knot on 19 August 2019 after Kharwar converted to Islam.
Following the lines of the UP and Karnataka high court, the The Delhi high court granted protection to an interfaith couple from Uttar Pradesh, who fled to the national Capital fearing persecution, days after the new UP Prohibition of Unlawful Conversion of Religion Ordinance 2020, commonly known as the ‘love jihad’ law, was passed.
The interventions by the courts are significant as they come amid communally charged debates around ‘love-jihad’, essentially a conspiracy theory. On October 31, the Chief Minister of Uttar Pradesh, Yogi Adityanath, had said that his government would enact a law against ‘love-jihad’, a term used to discredit marriages between Muslim men and Hindu women. The Hindu right believes it to be part of a conspiracy to convert Hindu women.
Speaking to NewsClick, Supreme Court Lawyer, Fuzail Ahmad Ayyubi said: “The ordinances have a limited shelf life; the courts are intervening extensively, protecting the people, liberty, religion and the choice of the spouse, which is inherent in the Constitution. The liberties given by the Constitution are not unfettered, they are with reasonable restrictions. Now, the question in front of the courts is if these restrictions are reasonable. When the occasion arises that this is contested, in the light of the consistent progressive judgements, this ordinance will not hold a test of judicial scrutiny.” The ordinance was criticised by four former judges, including former Supreme Court judge, Justice Madan B Lokur, who said that it was “unconstitutional”.
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